INSIDE THIS ISSUE Judicial Conference Adopts Rules Changes, Confronts Projected Budget Shortfalls Caseloads Swamp Border Courts New Case Management System Under Development Judiciary Prepares Y2K Continuity Plans An Interview with Senator Thad Cochran Judicial Conference of the United States, September 16, 1999 Judicial Milestones Judicial Boxscore

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Judicial Conference Adopts Rules Changes, Confronts Projected Budget Shortfalls

A series of changes to court rules was approved by the Judicial Conference at its biannual meeting last month. The changes are aimed at bring-ing uniformity to the pretrial exchange of information while reducing expense and delay in certain civil cases. The Conference also received an update on the Judiciary's potentially severe budget shortfall for fiscal year 2000.

While it will require $4.3 billion to operate the judicial branch in the up-coming fiscal year, the Senate has set an appropriations level of only $3.8 billion and the House $3.9 billion. A House-Senate conference to determine a final funding level is expected to occur soon. In a letter last month to congressional leaders, Chief Justice William H. Rehnquist said that the Senate level is "both unjustified and impractical," and the House level would "have a noticeable impact on court operations." Federal judges, Administrative Office Director Leonidas Ralph Mecham, and AO staff continue to communicate aggressively the Judiciary's needs to Congress.

It takes less than two-tenths of one percent of the entire federal budget to run the judicial branch. However, cognizant of the budget constraints facing Congress, the Judiciary re-quested funding that would allow it to provide only the same level of ser-vices as FY 99, despite continuing growth in caseload. It also agreed to a court staffing freeze for the second year in a row. Nevertheless, depending on final funding levels, all court employees still could be furloughed for two weeks, money to pay lawyers who represent indigent defendants could run out next summer, and the number of probation and pretrial ser-vices officers, who supervise 100,000 released felons, could be cut seriously compromising public safety.

A copy of the Chief Justice's letter to Congress, a formal Judiciary appeal letter, and other background on the Judiciary's budget can be found on the Judiciary's Internet site (www.uscourts. gov, click on "What's New.").

Chief Judge J. Harvie Wilkinson III (4^th Cir.) and Chief Judge Edward R. Becker (3^th Cir.) at the reception honoring Judge Wm. Terrell Hodges.

Amendments Approved

The amendments approved by the Conference for further review by the Supreme Court and Congress affect the Federal Rules of Civil Procedure and follow a three-year study and extensive discussion by judges and lawyers across the country. These particular rules impact primarily the pretrial exchange of information by attorneys known as "discovery." Discovery represents 50 percent of the litigation costs in the average case and up to 90 percent of the litigation costs in cases in which it is actively used.

Chief Judge Stephanie K. Seymour (10th Cir.) and Chief Judge Charles H. Haden II (S. D. W. Va.) arrive at the Supreme Court, where the reception honoring Judge Hodges was held.

Judge Dennis Jacobs (2 nd Cir.) and Chief Judge Carolyn Dineen King (5 th Cir.) were among the guests. The Conference approved all the proposed rule changes except for changes to Rule 26(b)(2) on cost bearing. The failed amendment would have explicitly provided that the judge may direct the party making a discovery request to bear the cost of producing the information requested if information being sought is duplicative or unusually cumulative or if the burden or expense of the discovery outweighs its likely benefit The proposed rules changes can be found at www.uscourts.gov, by clicking on "For Public Review." They include the following:

Initial Disclosure

Rule 26(a)(1). This rule provides for the early automatic exchange of pretrial information, but permits courts to opt-out of this requirement, leaving a wide variety of practices across the country. The amendment would provide for a consistent national rule by removing the opt-out provision. Unlike the existing rule, however, the amended version would provide that only information that is favorable to the disclosing party need be revealed.

Scope of Discovery

Rule 26(b)(1). Many lawyers want greater judicial involvement to control excessive discovery. This amendment would enhance a judge's authority to get involved in particularly contentious discovery. It states that an attorney is still entitled to receive without judicial intervention information that is "relevant to the claim or defense" of any party. However, discovery that goes beyond this and the subject matter in general would be allowed only when ordered by a judge.

Depositions

Rule 30. The pretrial questioning of potential witnesses, known as depositions, often are the most expensive form of discovery. The amendment adopts a presumption that no deposition should last more than one seven-hour day, unless approved by the court.

Congress has authorized the federal Judiciary to prescribe the rules of practice, procedure, and evidence for the federal courts, subject to the ultimate right of Congress to reject, modify, or defer any rules. Because of the potential impact of rules changes, the process for amending rules typically involves a minimum of seven stages and usually takes three years. The rules changes approved by the Conference now will be sent to the Supreme Court for consideration later this year. After conducting its review, the Court normally transmits proposed rules amendments to Congress by May 1.

Congress has a statutory period of at least seven months to act on the rules submitted by the Court. If Congress does not enact legislation impacting on the rules, they take effect as a matter of law on December 1.

Continuing Resolution Means Business As Usual-At Least Until October 21 Two days before the start of the new fiscal year 2000, and with nearly half the 13 appropriations bills still to be considered, Congress passed a joint resolution authorizing continuing appropriations for FY 2000 through October 21. The President signed H. J. Res. 68 September 30. A continuing resolution gives budgetary authority to federal departments and programs until regular appropriations bills are enacted. The continuing resolution averts a shutdown of the federal government, including the federal courts. In anticipation of a continuing resolution, the Executive Committee of the Judicial Conference had approved interim financial plans to fund court-wide operations at the present level of staffing, pending approval of the Judiciary's appropriations act. Courts will operate at their FY 99 rate of obligations, but will defer all discretionary contracts and acquisition of goods and services.